1. This is an application for revision against the order passed by Magistrate Docks, Karachi on 23May, 1979.
2. Mst. Rabia Bibi had filed an F. I. R. On 28January, 1976 that she had been turned out of her house at 12 noon by Amanullah, Wajid, Nafees, Rasheed and Rasool Bibi and her household articles had been also thrown outside.
3. The prosecution examined Mst. Rabia Bibi, her son Mumtaz Akhtar and Tariq Mohammad who stated that the articles had been thrown out of the house. There was no cross-examination against these witnesses. Mst. Rabia Bibi had made a positive statement that she had been living in that house. Mumtaz Akhtar and Tariq Mohammad also supported her.
4. The two P. Ws. Namely Mohammad Tufail and Yousuf were examined as Mashirs of the Memo. In respect of the household articles of Mst. Rabia Bibi lying outside. These persons were residents of the locality and they were cross-examined at length and no question was asked from them by the defence counsel that Mst. Rasoolan Bibi had been in possession of the disputed house before January, 1979 or that Mst. Rabia Bibi had not been in possession of the said house. No documents have been filed in the case by either party, but there was some evidence to support of the case of Mst. Rabia Bibi and it could not be said that no one of the P. Ws. Had supported her case.
5. On 23May, 1979 the learned Magistrate passed the following order on the application under section 249-A, Cr. P. C. Which reads as under:-- "This case is as old as 1976. Only five witnesses have been examined in this case, who have not supported the complainant's case. The accused persons all attended the Court on all hearings.rd th rd There is no possibility of conviction of accused in this case. Therefore, accused are acquitted under section 249-A, Cr. P. C. Their bail bonds are cancelled."
6. I do not find any justification for that order: 'The learned Magistrate has not discussed the evidence of any of the P. Ws. And his conclusion that the: five witnesses have not supported the complainant case does not appear to be justified from the record.
7. Mr. Sikandar Hayat has filed the affidavit of Rasool Bibi and has -shown that in 1975 the K. M. C. Had ordered the lease of Plot No. 1118 in her favour. This document does raise a presumption in her favour but the same has to be properly brought on record. And Mst. Rabia Bibi has to prove her possession before January, 1979 either through the cross-examination of the witnesses or through her own statement or through her D. Ws. And before that it could not be said that the case of Mst.
8. Rabia Bibi was completely groundless. I would therefore set aside the order of dismissal of complainant under section 249-A, Cr. P. C. And remand the case back to the District Magistrate for sending the case to the concerned Magistrate for disposal. The observations made by me in this case will not be regarded as observations either in favour or against any party for the purposes of trial of the case.
9. Mr. Nazir Alam, Advocate had appeared for the State and had supported the revision application.
10. The Magistrate to whom the case is sent by the District Magistrate will see to it that case is disposed of within six months.